HQ 0950733 - Application for further review of Protest No. 3801-89- 002625 under 19 U.S.C., section 1514(c)(2); classification of filters used in blood filtration; technical use fabric; bolting cloth; straining cloth; of a kind used in oil presses and the like; filtering cloth; HRL 950284. - United States International Trade Commision Rulings

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HQ 950733

December 28, 1993

CLA-2 CO:R:C:T 950733 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.20.3000

District Director
U.S. Customs Service
477 Michigan Avenue
Patrick V. McNamara Building
Room 200
Detroit, Michigan 48226-2568

RE: Application for further review of Protest No. 3801-89- 002625 under 19 U.S.C., section 1514(c)(2); classification of filters used in blood filtration; technical use fabric; bolting cloth; straining cloth; of a kind used in oil presses and the like; filtering cloth; HRL 950284.

Dear Sir:

This is a decision on application for further review of a protest timely filed by John V. Carr & Son, Inc. We have considered the protest and our decision follows.

FACTS:

The instant merchandise is a woven fabric of nontextured polyester filaments. The submitted sample is 6.5 inches wide (16.5 cm) and features uniform 28 micron (0.028 mm) mesh openings. The protestant states that the material is used as a filtration medium for blood purification.

Protestant has also submitted two swatch books containing similar filter materials. These books are from the Saati Filtration Division and are entitled "monofilament synthetic mesh for filtration and industrial applications." One book features various polyester monofilament fabrics, while the other contains certain nylon monofilament fabrics. These materials possess mesh sizes ranging from 1820 microns (1.820 mm) down to 15 microns (0.015 mm). All of the submitted samples possess mesh openings that are geometrically uniform in both size and shape.

Although the filter fabrics are in this instance used in the blood filtration industry, marketing materials which have been provided to this office support protestant's claim that they may be used for various sifting operations in the flour mill and abrasive grains industries, as screen fabrics in the screening industry, as hydraulic filters in the aerospace industries, as transmission filters and fuel injection filters in the automotive industries, as well as chromatography separators in research laboratories.

The instant material was liquidated under heading 5407 Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides generally for woven fabrics of synthetic filament yarn. The protestant's claimed classification is under subheading 5911.20, HTSUSA, which provides for bolting cloth for technical uses. In light of the arguments raised by the protestant, you argue that the material should have been liquidated under subheading 5911.40, HTSUSA, which provides for straining cloth for technical uses.

ISSUE:

What is the proper tariff classification for the subject merchandise?

LAW AND ANALYSIS:

Heading 5911

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

Heading 5911, HTSUSA, provides for textile products and articles, for technical uses, specified in note 7 to Chapter 59, HTSUSA. The phrase "for technical uses" is not defined in the HTSUSA. However, the Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the nomenclature at the international level, offer some general guidance regarding the meaning of this phrase. The EN to heading 5911 state, in pertinent part at page 822, that:

The textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.

Thus, certain textile products possessing characteristics identifying them as being for use in machinery are classifiable in heading 5911. In this instance, the material is a textile cloth designed for use as a filtration media in blood purification machinery or apparatus. For this reason, it appears that this merchandise falls generally within the scope of heading 5911.

Section XI, chapter 59, note 7, HTSUSA, specifically describes the goods which are encompassed by heading 5911. This note states that:

Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:

(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:

(i) Textile fabrics, felt and felt- lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes;

(ii) Bolting cloth;

(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;

(iv) Flat woven textile fabric with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;

(v) Textile fabric reinforced with metal, of a kind used for technical purposes;

(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating metals;

(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts). (Emphasis added).

Under the terms of chapter 59, note 7(a), only the textile fabrics and products enumerated in 7(a)(i) through 7(a)(vi) fall within the purview of heading 5911. Note 7(b) enlarges the scope of this heading to include textile articles of a kind used for technical purposes. Note 7(b) is inapplicable in this case as the filter material has been imported in material lengths. Hence, the filter material is classifiable within heading 5911 only if it is one of the fabrics and products set forth in notes 7(a)(i) through 7(a)(vi) of Chapter 59.

Of the fabrics and products set forth in these notes, we have determined that only note 7(a)(ii), which provides for bolting cloth, and note 7(a)(iii), which provides for straining cloth of a kind used in oil presses or the like, of textile material or human hair, may describe the instant filter material.

Filter Fabrics

The Fairchild's Dictionary of Textiles has described "filter cloth" as follows:

A general term for a number of different fabrics used for filtering purposes, ranging from fine flour filter fabric (bolting cloth) made of silk or synthetic fibers, to very coarse cotton or man-made fiber filter fabric. The cloths vary in weave, weight, fiber, size of yarns and all other features. Man-made fibers are very useful as industrial filtering cloths because of their resistance to the action of many chemicals.

This language indicates that filter fabrics include bolting cloths, as well other industrial filtering cloths.

Bolting Cloth

The following standard lexicographic sources define the terms "bolt" and "bolting cloth" as follows:

The Century Dictionary and Cyclopedia, The Century Company (1911): bolt1 vt 1.: To sift or pass through a sieve or bolter so as to separate the coarser from the finer particles, as bran from flour; sift out: as, to bolt meal; to bolt out the bran; bolt2 n. 1.: A sieve; a machine for sifting flour; bolting-cloth n.: A cloth for bolting or sifting; a linen, silk, or hair cloth, of which bolters are made for sifting meal, etc. The finest and most expensive silk fabric made is bolting-cloth, for the use of millers, woven almost altogether in Switzerland.

Funk & Wagnals New Standard Dictionary of the English Language, (1928): bolting, n. 1.: The act or process of sifting, usually in a mill or machine; b. cloth 1.: A fabric, usually of unsized silk, for separating the various products of a flouring mill.

The Wellington Sears Handbook of Industrial Textiles, Ernest R. Kaswell (1963): bolting cloth: Light weight, finely woven silk and nylon bolting cloths made in precise mesh sizes are extensively used industrially for sifting and screening purposes. These extremely uniform filament yarn constructions in leno weaves are manufactured principally in Switzerland on special looms, requiring a high degree of skill on the part of the operator to achieve weaving perfection.

Bolting cloths are designated by the number of interstices or openings per linear inch, in the same manner as fine wire screening. For example, a 200 mesh bolting cloth has 200 openings per inch in both the warp and filling directions. The size of the openings must also be specified, as yarns of different deniers provide different size interstices for a given mesh cloth...

Silk bolting cloths are generally used for dry sifting processes, with the filament nylon cloths preferred for wet screening operations such as those employed in starch and flour manufacturing. Both types of fabrics are also widely used by the textile industry in screen printing.

Webster's Third New International Dictionary, Merriam- Webster (1986): bolt 1.: to sift (as meal or flour) usu. through fine-meshed cloth; also: to refine and purify (as meal or flour) through any process; bolting cloth: a firm fabric now usu. of silk woven in various mesh sizes for bolting (as flour) or for use in screen printing, needlework, or photographic enlargements.

Fairchild's Dictionary of Textiles: bolting cloth: A plain weave fabric originally of silk with a fine, uniform mesh; the fabric is woven in the gum and has a high number of threads per inch. The standard width is 40 inches. Fine mesh cotton muslin is also employed. For a time, filament yarn of Vinyon, a copolymer of vinyl acetate and vinyl chloride was used, but when production of this yarn ceased, other synthetic yarns were used. Uses: sifting flour in flour mills and screen printing. Sometimes called banderoles.

Under our prior tariff, The Tariff Schedules of the United States, bolting cloth was classified under items 357.25 through 357.35. The scope of that provision was discussed in the Summaries of Trade and Tariff Information, Schedule 3, Volume 4 (1969):

This summary covers woven fabrics known in commerce as bolting cloths, including woven fabrics chiefly used for stenciling purposes in screen-process printing, wholly of silk, wholly of manmade fibers, or wholly of silk and manmade fibers. For tariff purposes, cloths chiefly used for stenciling purposes in screen-process printing are provided for separately.

The fabrics used for both bolting cloths and stencil fabrics are strong, fine, leno- or plain-woven gauze fabrics, made of the best quality silk and manmade fiber yarns specially thrown to insure uniform size. The weaving is done, on both hand and power looms, with the utmost care so as to produce a fabric with the meshes identical in size...Silk bolting cloth is used mainly for dry milling (especially of flour), is generally leno-woven, and is of two types -- regular and grit gauze. Each type is made in several weights and in a wide range of mesh counts...Bolting cloths of manmade fiber, usually of nylon and plainwoven, are heat set after weaving and generally used in wet sifting operations such as in starch manufacture.

Bolting cloths are necessary for flour milling and many other industrial sieving operations, particularly for abrasives and chemicals, and for drugs, pigments, salt, sugar, spices, metal powders, explosives, and other pulverized materials. These fabrics are also used for other purposes, such as in the fabrication of wigs and toupees.

The earlier sources indicate that the terms "bolting" and "bolting cloth" have been traditionally associated with dry sifting and sieving operations for the flour or meal industry. The geometrically uniform openings which characterize bolting cloth are used to separate coarse from fine particles. Bolting cloths were historically composed of linen, silk or hair cloth.

However, the later reference materials indicate that bolting cloth is now put to a variety of different applications, first in screen-printing and ultimately for such diverse purposes as industrial sieving operations for abrasives and chemicals, drugs and other pulverized materials, as well as wet sifting operations such as starch manufacture. The potential uses for bolting cloth appear to be open-ended.

As the number of uses for this material has expanded, it has become more important to identify its physical attributes. Bolting cloth is generally a fine woven fabric comprised of a leno or plain weave. Constant uniformity of mesh size continues to be its defining characteristic. The weave must be firm and strong in order to prevent slipping and displacement of the filling yarn. Bolting cloth may now be composed of any number of man-made fibers in addition to natural fibers.

The EN to heading 5911 define bolting cloth in a manner consistent with the foregoing description:

Bolting cloths. These are porous fabrics (for example, with a gauze, leno or plain weave), geometrically accurate as to size and shape (usually square) of the meshes, which must not be deformed by use. They are mainly used for sifting (e.g., flour, abrasive powders, powdered plastics, cattle food), filtering or for screen printing. Bolting cloths are generally made of hard twisted undischarged silk yarn or of synthetic filament yarn.

This passage restates the proposition that bolting cloths are generally used for sifting and screen printing operations. However, it also provides that bolting cloth may be used for certain unidentified "filtering" purposes. We interpret this general statement to be a recognition that new uses for bolting cloth may arise over the course of time.

The EN also set forth several physical characteristics which are associated with bolting cloth. The term "porous" refers to a fine leno or plain woven fabric. The EN reiterate that bolting cloth must possess geometrically uniform mesh openings. The fact that this cloth must not be "deformed by use" is an indication that the weave of the fabric must be set so as to retain a consistent mesh size and shape. Finally, the EN confirm the fact that bolting cloth may be of synthetic filament yarn as well as such natural yarns as silk.

In this instance, the merchandise features the physical characteristics of bolting cloth. Protestant has indicated that the filter material is used to separate impurities from blood without removing the red blood cells. It is of critical importance that the mesh openings be geometrically uniform in order to insure that the cells are retained, while only smaller particles are filtered off. The material is composed of rigid polyester filaments and possesses the uniform mesh normally found in bolting cloth.

Although the filter cloth is for use in blood purification, which is a use not normally associated with bolting cloth, protestant states that this material is in fact principally used for more traditional sifting purposes. Blood purification merely represents a new application for a pre-existing product. As stated above, the EN to heading 5911 provides that bolting cloth may be used for unspecified "filtering" purposes. We interpret this language to mean that the scope of the bolting cloth provision shall not be limited to its more traditional uses. Hence, we conclude that the instant material is described by the bolting cloth provision.

Straining Cloth

Subheading 5911.40, HTSUSA, provides for "straining cloth of a kind used in oil presses or the like, including that of human hair." The term "straining cloth" does not have the historical significance which is associated with the term "bolting cloth." The EN to heading 5911 provide:

Straining cloth (e.g., woven filter fabrics an (sic) needled filter fabrics), whether or not impregnated, of a kind used in oil presses or for similar filtering purposes (e.g., in sugar refineries or breweries) and for gas cleaning or similar technical applications in industrial dust collecting systems. The heading includes oil filtering cloth, certain thick heavy fabrics of wool or of other animal hair, and certain unbleached fabrics of synthetic fibres (e.g. nylon) thinner than the foregoing but of a close weave and having a characteristic rigidity. It also includes similar straining cloth of human hair.

Although subheading 5911.40 provides for straining cloth which is limited to those used in oil presses or the like, we have determined that it encompasses a broad array of filtering materials. In Headquarters Ruling Letter (HRL) 950284, dated March 19, 1992, we stated that:

A careful reading of the language used in subheading 5911.40, HTSUSA, reveals that there is no requirement that the straining cloths in this provision be used in oil presses; rather, the term "or the like" is used which serves to broaden the types of straining clothes that are properly classifiable here.

Citing the EN to heading 5911 regarding the straining cloth provision, we went on to say:

...EN(A)(3) to heading 5911, HTSUSA, enumerates several examples of types of industrial filtering which utilize straining cloths (e.g., oil presses, sugar refineries, breweries). There is no fundamental difference in the filtering function of the instant merchandise as compared with those enumerated. Any straining or filtering cloth classifiable in subheading 5911.40.0000, HTSUSA, is designed to separate solid matter from fluid and is for a technical use.

This passage stands generally for the proposition that filtering cloth designed to separate solid matter from fluid and is for a technical use is prima facie classifiable under the straining cloth provision of heading 5911. We see no need to modify this observation. However, as the bolting cloth provision appears to describe a specific type of filtering cloth, it is necessary to more clearly delineate the scope of the straining cloth provision.

The EN indicate that straining cloth is used in "oil presses or the like." An oil press is more commonly known as a filter press. The most common variety of this equipment is the plate and frame filter press. A plate and frame press has been described generally as follows:

Wellington Sears Handbook of Industrial Textiles (1963): Plate and Frame Press. This is an early type of pressure filter still widely used. It consists of a series of vertically positioned alternate plates and frames arranged in a horizontal holder. The plates are covered with the filter cloth and the assembly is closed tightly by means of hydraulic pressure. Thus chambers are formed into which the liquid to be filtered is pumped. The cloth acts as a gasketing material for each plate, and also is a support for the cake. In this type of filter the gasketing is an important consideration, and relatively heavy fabrics with good mechanical characteristics are required.

The standard plate and frame press is an open delivery type, with each plate delivering its filtrate to an outside trough. After completion of the filter cycle, the press is opened and the filter cakes are scraped from the cloths manually.

Encyclopedia of Chemical Technology: The plate-and- frame filter press is probably the cheapest per unit of filtering surface and requires the least floor space...It has a high recovery of solids, and the solid in the form of a cake may be readily handled in a tray or shelf dryer, which is frequently used for valuable products.

There is a great variety of filter presses employing plates and frames. The simplest type has a single conduit for introducing slurry and wash water, and a single opening in each plate for removal of the liquid (open delivery)...

The feed slurry enters through the conduit formed by holes in the upper right corner of both the plates and frames. Each frame carries an inlet or hold leading from this conduit to the space between the plates. Pressure on the slurry...causes the filtrate to pass through the cloths on either side of the plates and run through the space between the cloth and the plate toward the outlet...

The solids in the slurry accumulate on the cloths on opposite sides of the plate. After due time only a small part of the space between the plates is available for the slurry, and the feed is shut off. If the cake is to be washed, clear washing fluid is then passed into the inlet, enters the cake from the center of the frame, and passes toward the plates on either side. After the cake has been washed, this flow is stopped, the force holding the plates together is released, the plates and frames are opened in sequence, and the cake is removed or dumped into a pit below the press. After dumping is completed, the press is again closed by applying the mechanical force to lock the plates and frames together, and a new cycle of filtration begins.

A plate and frame filter press (i.e. oil press) is a specific liquid/solid pressure filtration apparatus. However, the straining cloth provision states that it encompasses straining cloth for oil presses "and the like." The applicable EN indicate that straining cloth includes filter cloth used in sugar refineries or breweries and for gas cleaning or similar technical applications in industrial dust collecting systems. Therefore, the subheading for straining cloth is not limited to filter cloth used in oil presses. From this fact we conclude that this provision encompasses filter cloths with certain common characteristics as those used in oil presses.

The references referred to above indicate that oil presses are designed to maximize the surface area of the filter cloth through which the slurry is forced. The filter cloth is relatively heavy and thick in relation to bolting cloth. For this reason, it is generally more durable than bolting cloth. There appears to be no requirement that the filter cloth possess exact and uniform openings. Cloths which are relatively thick and heavy and which possess variable pore openings will capture a high volume of solids of variable size.

The EN reinforce this interpretation as they indicate that the provision encompasses heavy fabrics of wool which possess a characteristic rigidity. It also lists a close weave as a property characteristic of straining cloth, which may be contrasted to the fine woven uniform mesh weave normally found in bolting cloths. Finally, the EN list a variety of fabrics embraced by the straining cloth classification, including woven filter fabrics, needled filter fabrics, fabrics of wool or of other animal or human hair. From these observations we conclude that the straining cloth provision provides for most, if not all, of the filter fabrics for technical purposes not described by the bolting cloth provision.

Filter fabrics which have been classified under the straining cloth provision have exhibited the characteristics set forth above. In HRL 950284, dated March 19, 1992, and HRL 953056, dated June 16, 1993, we classified certain woven filter belting used in sludge dewatering water purification processes as straining cloth. In those decisions, the material was a thick and relatively heavy single ply fabric featuring a close weave. Moreover, HRL 089200, dated April 15, 1992, was concerned with similar filter cloths designed to be incorporated into a filter press (i.e. oil press). Finally, in HRL 084821, dated June 21, 1989, we classified a needleloomed fiber fabric as a straining cloth. Needled filter fabrics are listed in the EN to heading 5911 as an example of a straining cloth.

In this instance, the filter fabric does not exhibit the characteristics set forth for straining cloth in the EN. It is a thin and lightweight material not normally associated with straining cloth of heading 5911. It possesses a fine mesh weave, as opposed to a close weave. This material has been designed to retain particles of a certain size, while filtering out smaller particles. On the other hand, straining cloth may have variable pore openings to capture particles of many sizes. In light of these observations, we conclude that the instant material will not be put to the same uses as those set forth above. Accordingly, this merchandise is not classifiable as straining cloth of heading 5911.

HOLDING:

Therefore, based on the foregoing discussion, this protest should be granted in full. The subject material is classifiable under subheading 5911.20.3000, HTSUSA, which provides for textile products and articles, for technical uses, specified in note 7 to this chapter: bolting cloth, whether or not made up: other, other. The applicable rate of duty is 6.5 percent ad valorem. The textile category is 229. A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director

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